Case BriefsSupreme Court

Supreme Court: Stating that the subjective satisfaction of the detaining authority under COFEPOSA is not immune from judicial reviewability, the bench of R. Banumathi and AS Bopanna, JJ has held that,

“the court must be conscious that the satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention.”

The Court dealing with a case where a huge volume of gold had been smuggled into the country unabatedly in the last three years and about 3396 kgs of the gold had been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure.

Holding that the High Court erred in interfering with the satisfaction of the detaining authority, the Court refused to accept the contention that the courts should lean in favour of upholding the personal liberty,

“the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society.”

The Court, hence, upheld the detention of the Gold smuggler.

[Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875, decided on 18.07.2019]

Case BriefsSupreme Court

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, 2017 SCC OnLine SC 16, decided on 04.01.2017]